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So Who Are the Victims Now?
SO WHO ARE THE VICTIMS NOW?
Sandra Walklate, Manchester Metropolitan University
Abstract
The purpose of this article is to explore the interconnections between different strands of victimological thought, their relationship with the contemporary victims' policy scene and the relevance of this work for community justice. In so doing the argument will be developed that in order to understand contemporary policy concerns it is necessary to situate those concerns within the wider changing relationship between the citizen and the state and the extent to which that changing relationship has resulted in the politicisation of the crime victim. Particular attention will be paid to the re-orientation of the probation service, the introduction of the victim personal statement scheme, and the contemporary use of restorative justice, as policy examples currently concerned with the victim of crime. The conclusion will draw out some of the implications of policy orientations of this kind for the field of community justice.
The final strand in the new punitiveness is the rise and rise of the crime victim. Since the mid-1970s there has been a growing emphasis on the neglect and the invisibility of the victim of crime in the administration of justice. The trumpeting of crime victim wrongs has been useful to anyone wishing to make an electoral appeal on law and order issues. Although at a common sense level one might have thought that it is because crimes do have victims that anyone cared about crime in the first place, the 1970s rediscovery of the victim certainly fed into 1990s punitiveness with a vengeance! The results? A greatly increased fear of crime, daily demands for stiffer sentences, and a steep increase in levels of criminological nonsense (Carlen, 1996: 53).
Introduction
In the aftermath of the events of September 11th in New York it seems a little odd to be writing a piece about the current state of play in respect of victim policy, since in a very real way those events raise all kinds of questions about what we understand by victim, criminal victimisation and victim policy. The hidden and not so hidden politics that lie behind the victims we 'see' and those we do not 'see' have been commented on elsewhere by Elias (1993) and Cohen (2001). As a consequence of the thought processes generated by those events and those that have followed, this article will address three themes in order to develop an appreciation of the nature of contemporary victim policy. First it will
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offer a brief, critical consideration of the nature of the sub-discipline of victimology and its links, if any, with victim policy. Second, it will consider the changing nature and influences in the victim policy-making process from 1945 to the present. Finally it will consider how both of these processes have contributed to contemporary victim policy concerns by exampling three contemporary policy issues: the re-orientation of the work of the probation service, the introduction of the victim personal statement scheme, and the move towards increasing the use of restorative justice. We shall then return to the questions of what we understand by victim, criminal victimisation and victim policy. But first a brief word about victimology.
Victimology, "victims" and "victimisation" It has often been observed that the 'victim' has been the forgotten party of the criminal justice process. The extent to which this is the case in the contemporary criminal justice scene is perhaps less so, however how and when 'victims' are taken account of, and what kind of 'victims' are interesting questions to explore. The reader will have noted already that I have chosen to put inverted commas around the terms "victims" and "victimisation". This is to indicate what I consider to be their problematic status as ways of either describing or understanding what we have contemporarily come to take for granted in relation to people's experience of crime. The justification for viewing these terms in this way shall become clear as this article progresses but in order to do this we need an understanding of the key characteristics of victimology.
In many ways the emergence and development of the (sub)discipline of victimology parallels that of criminology. Early victimological work was concerned to identify different types of victims much in the same way that early criminological work endeavoured to identify different types of criminals. Original concerns such as these reflect the extent to which victimology was as embedded in the processes of differentiation, determinism and pathology as was criminology (Roshier, 1989). Concerns such as these, and their subsequent development, have led commentators to identify different theoretical strands of criminological thought broadly categorised as positivist, radical and critical victimology (Mawby and Walklate, 1994). It will be of value to say a little about each of these.
Miers (1989) initially assigned the label 'positivist' victimology to a range of victimological work. He identified the key characteristics of this kind of work in the following way:
The identification of factors which contribute to a non-random pattern of victimisation, a focus on interpersonal crimes of violence, and a concern to identify victims who may have contributed to their own victimisation (Miers, 1989: 3).
In other words this version of victimology has been concerned to identify patterns of victimisation, the regularities and precipitative characteristics of victimising events, and thereby to produce victim typologies. This view of the data gathering process privileges
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the geographically and socially focused distribution of criminal victimisation. As a consequence this led researchers to commit themselves to the conduct of local criminal victimisation surveys. Such surveys were completed in Merseyside, Edinburgh and Islington. It is also interesting to note that the requirement to conduct local crime audits made under the 1998 Crime and Disorder Act led some local authorities to conduct such local surveys. Radical left realism has been very successful at offering a much more detailed picture and analysis of who the victims of crime are. It has been particularly more successful at uncovering incidents of, for example, racial and sexual harassment than national victimisation surveys, and has also included some efforts to explore an understanding of those who are disproportionately victims of 'commercial crime' (Pearce, 1990). However, one of the problems associated with this version of a radical victimology emanates from its use of the term realism. Suffice it to say at this juncture that this radical left realism's understanding and application of this concept is partial and has the cumulative effect, according to Smart (1990), of a latent slippage into positivism. However before moving on with this it is important to say something about the contribution of the feminist movement to our understanding of "victimisation".
The marginalisation of feminism by victimology has been commented on on more than one occasion. Rock (1986), for example, implies that this has occurred to a certain extent in the choices made by feminists themselves who have regarded the concept of 'victim precipitation', so central to much conventional victimological work, as being 'victim blaming' not only in its everyday used but also in the way it has been translated in the courts as 'contributory negligence' (Jeffries and Radford, 1984). Some aspects of this uneasy relationship between victimology and feminism are epitomised in their respective use of the terms 'victim' and 'survivor'. The genealogy of the term victim itself connotes the sacrificiant who was frequently female and the word itself, when gendered as in French is denoted as female. Feminists, recognising the power of such a linguistic heritage, regard the term as emphasising passivity and powerlessness in contrast to what they argue is the active resistance to oppression that most women most of the time engage in in their everyday life in order to survive. Hence the feminist preference for the term survivor. But of course, whilst these terms are often presented as oppositional, experientially speaking they frequently are not. It is as possible to think in terms of an active or passive victim as it is to identify an active or passive survivor. Indeed an argument can be mounted which presents these concepts as capturing different elements of the same process (Walklate,
- and moreover are embedded in women's own experiences of their day to day lives (Kirkwood, 1993).
It must be noted that feminist work is not in and of itself centrally concerned with criminal victimisation yet many of the areas and issues with which feminists have concerned themselves and campaigned against are very much about criminal victimisation. Rape, domestic violence, child abuse, are all areas in which feminist informed work has achieved much in documenting both the extent and the impact of such events on women's' lives. What renders the findings associated with this data different than those of more conventional victimological work is twofold; on the one hand
So Who Are the Victims Now?
it renders the safe haven of the home a significant arena in which to understand criminal victimisation and on the other hand it poses an underlying mechanism which produces the surface manifestation of this kind of patterning of criminal victimisation; patriarchy. And although there is a danger inherent in feminist work which can leave the impression that women are 'victims' and men are not (Walklate, 2000, Goodey, 1997; Newburn and Stanko, 1994), it does lead us to consider what we mean by the term 'victim'. Such work returns us to the question of what can meaningfully be understood by the term realism.
Efforts have been made to construct an alternative agenda for victimology incorporating an understanding of both feminism and realism by Mawby and Walklate (1994) with the proposal of a critical victimology. The term critical has been used in a number of different ways to articulate an agenda for victimology (see for example, Miers, 1990, and Fattah, 1991). However the version of critical victimology proposed by Mawby and Walklate (1994) demands that we move beyond the mere appearance of things towards understanding what generates that appearance. In order to do this it is important to ask the question: what constitutes the real?
In order to understand the nature and impact of social reality, arguably it is necessary to search underneath the 'mere appearances' associated with positivism, and to posit mechanisms by which those appearances are produced. Leaning on Giddens' (1984) theory of structuration, endeavours to research the real need to take account of a number of different processes which contribute to the construction of everyday reality: people's conscious activity, their 'unconscious' activity, the unobserved and unobservable mechanisms which underpin daily life, and the intended and unintended consequences of people's action. In other words this kind of theoretical starting point privileges process over incidence and argues for duality rather than dualism. As such it is reminiscent of some feminist concerns (Harding, 1991) and provides one way of beginning to understand the dynamism between the structural location of women (victimisation) and women's negotiation of that structural location (survival). In the context of victimology this kind of starting point postulates the importance of understanding the processes which go on behind our backs, which contribute to the victims (and the crimes) which we 'see' as well as those we do not 'see', in order to fully understand the 'lived realities' (Genn, 1988) of criminal victimisation. The relevance of thinking about such mechanisms is highlighted in what follows.
The extent to which any of these versions of understanding 'victims', and 'victimisation' have had an impact in the policy arena is open to considerable debate. Sebba (2001: 44) concludes:
Research on victims of crime in western societies has disclosed some real needs on their part, not only in practical terms, but also in terms of the need of greater attention from the criminal justice agencies and for enhanced participation in the legal process. The rights of victims have been recognised on the level of declared policies and legislation, but as in other areas of
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reforming Conservative government sought to redefine most and abolish many. ......... Allegedly the Westminster model no longer works.
The revolutions of which Rhodes (1997) speaks have been felt in all aspects of the policy making process including criminal justice policy. One key to understanding the radical policy changes which Rhodes (1997) discusses can be seen in the shift from government to governance. To explain: the notion of government is characterised by the Westminster model; the notion of governance, however, is less clear. Rhodes (1997) argues that governance is broader than government: "governance refers to self-organising intraorganisational networks" (ibid.: 53) in which the boundaries between the public sector, the private sector, and the voluntary sector are constantly shifting and opaque.
It can be argued that the movement from government to governance has been accompanied by shifting understandings of accountability and citizenship. Under a system of governance organisations are no longer characterised by mechanisms of accountability to the state, and citizens are much more likely to be viewed as consumers or customers of services. This is part of a process that Garland (1996) has characterised as 'the responsibilisation strategy' in the criminal justice arena leading to the emergence of 'corporate grey areas' (Crawford, 1997). In other words a process which has extended the responsibility for crime and crime prevention to a disparate range of public, private and voluntary organisations for whom the lines of accountability are far from clear yet who wield an increasingly important influence on the distribution of monies and resources especially at a local level. In some respects it is within the space between these 'corporate grey areas' (ibid.) in which the concerns for the victim of crime has grown. Hence the title of this paper: so who are the victims now?
It was against the backcloth of the formation of the Welfare State and the changes in the policy process that have occurred since, that it is possible to map the growing concern for the victim of crime. It was Margery Fry's commitment to the notion of compensation for the victim of crime that informed the formation of the Criminal Injuries Compensation Board (CICB) in 1964. Rock (1990: 66) offers this analysis of her focus on compensation:
In her last formulation of the problem, compensation would represent a collective insurance provided by society. All taxpayers would be regarded as subscribers. All taxpayers were at risk of becoming victims. Since the state forbade citizens arming themselves, it should assume responsibility for its failure to provide protection.
Such a formulation clearly builds on the principle of insurance embedded in the Beveridge proposals of 1945 implying the notion of a contract between the victim of crime and the state. It must be remembered that the CICB was established to address the perceived needs of the victims of violent crime who could demonstrate that they were the innocent party to the events which happened to them. This narrow remit, and the symbolic construction of the innocent victim contained within it, perpetuating the
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distinction between the deserving and the undeserving, are part of what Miers (1978) has referred to as the politicisation of the victim. Indeed it is important to note that the CICB was put in place, in the absence of exploring what crime victims might want and in the absence of any organisation offering a voice to victims' concerns. As Mawby and Gill (1987) pointed out, victims of crime could already be treated under the NHS if injured or claim benefit if unable to work; so in comparison with victims of violent crime in other countries their perceived needs were already well-catered for. Yet the victim of (violent) crime became an important symbolic rhetorical and political device in extending the protection offered by the state to all its citizens.
With the establishment of the CICB it is possible to argue that the final brick of the Welfare State, cementing the power and the regulatory potential of the state, had been put in place (see Mawby and Walklate, 1994, Ch. 4). Moreover the late 1960s saw the emergence of two significant developments which were to make their presence felt in the criminal justice arena with respect to the victim of crime. The first of these was the formation of the Bristol-Victims Offenders Group. A short-lived organisation which paved the way for the founding of the National Association of Victim Support Schemes from the Bristol Victim Support Scheme in December 1973. The second was the feminist movement. The first Women's Refuge was opened in Chiswick in 1972 and the first Rape Crisis Centre in London in 1976. These developments, whilst tangential at the time to mainstream criminal justice policy concerns, nevertheless marked the beginnings of a discourse around issues concerning criminal victimisation that have borne considerable fruit, though it has to be said overall the voice of Victim Support has probably been better heard and acted upon than that of the feminist movement per se.
As has already been suggested Victim Support had rather humble origins in Bristol in the early 1970s but from 1975 to 1995 it became the fastest growing voluntary organisation that that sector has probably ever seen. For example, it grew from one scheme in 1973 to over 300 in England and Wales alone in 1990; there being separate organisations for Scotland and Northern Ireland. Moreover Victim support secured Home Office funding in the 1980s when government ideology and financial uncertainty were leading other areas of public service to a curtailment of service delivery and a reduced level of state involvement. This event is not solely explicable in terms of the neutrality of this particular organisation; though, as Rock (1990) has accurately observed, the fact that the victim of Victim Support was an androgynous victim did, as we shall see, have considerable influence. The underlying philosophy of the organisation was also important (Corbett and Maguire, 1987).
This construction of the citizen as a consumer during the 1980s marked a significant re- orientation of the understanding of citizenship from that of the 1950s. It carried with it a view of the citizen who not only has rights but also had responsibilities. Responsibilities which could be played out in and by organisations like Victim Support. (Part of the responsibilisation strategy identified by Garland, 1996, and referred to earlier). Indeed, important endorsement was given to this organisation, in the context of responding to
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The re-orientation of the probation service Garland (2001: 177) states that:
For much of the twentieth century probation was a core institution of criminal justice. Extensively used, in the vanguard of penal progress, it was often regarded as the exemplary instance of the penal-welfare approach to crime control.
It is a moot point as to the extent that either the public or the courts were ever convinced by probation as a mean of offender control, however contemporarily the probation service no longer has as its central mission the goal of assisting, advising and befriending (deserving ) offenders. Having been both the subject and the object of the same managerialist and performance led initiatives as other aspects of the criminal justice system one of the key roles now for the probation service is to support victims. This focus was first introduced in the 1990 Victim's Charter that obliged the probation service in England and Wales to contact the victims and/or families of life sentence prisoners prior to any consideration of their release. This task was widened in the 1996 Charter to include victims of serious violent or sexual offences. Moreover in the proposed revision of this charter it is suggested that this be extended once again to the victims of non-violent offenders (such as burglars) sentenced to twelve months or more (A review of the Victims Charter, February 2001: 8).
The early foray into this kind of work produced a mixed response from within the service. Whilst some commentators concerned themselves with the suitability of victim work in probation in the context of restorative justice and/or the value of public protection for probation as a service (see for example, Nellis, 1995) others clearly saw the central value of such a change in direction. As James (1995: 346) states:
It must be proper for the probation service to demonstrate concern for victims of crime by acknowledging the very real impact of victimisation upon individuals and in their direct work with offenders ensuring that offenders are cognisant of the impact of their crime upon victims.
However the initial demands for partnership working and training which followed from this change in direction should not be underestimated resulting in different practices being adopted in different areas (See Nettleton, Walklate and Williams, 1997). Later evaluative work of probation involvement with victims (Crawford and Enterkin, 2001) examined from the victims' point of view points to the same issues of variation in local practice but raises some other and perhaps more disturbing concerns. They highlight the imbalance between what victims are permitted to know about their offender as compared with the information they are expected to input into the system. In addition they comment on the failure of the system as it presently stands to guarantee the confidentiality of the victim. They conclude by saying that:
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The findings from the research reported here suggest that the ambiguities and uncertainties surrounding the integration of victims in the post- sentencing process may generate expectations, demands, interests and unintended consequences which are difficult to control, rather like the contents of Pandora's box (ibid. 724).
It would seem then, that this re-orientation of the probation service as it is presently construed may be posing more problems than it is addressing. This example, however, certainly illustrates two issues alluded to earlier in this paper. The first is the practice of making policy decisions that are not necessarily rooted in research. Yes it is the case, as many would argue, that victims of crime would like more information about 'their' case, and some would like to be more actively consulted in the criminal justice process. It is a moot point, however, whether or not victims of crime envisaged their inclusion within the criminal justice process to be quite of this form. The second illustrates the extent to which what matters in the current climate of the policy making process is whose voice is being listened to (Walklate, 2001). Increasingly complex though this is, it is certainly the case that Victim Support as an organisation was a key player in the formulation of the first Victims Charter. Many other organisations have been required to address the consequences that flow from this document. It is a moot point as to the extent to which despite this re-positioning of probation it has resulted in a true embrace of the victim of crime.
The victim personal statement scheme The introduction of the victim personal statement scheme constitutes another dimension along which policy makers are attempting to (re)integrate the victim into the criminal justice process by giving them a voice intended to be heard. Involving the victim in the court proceedings whether via an impact statement or a personal statement is a well established practice in the United States, Canada and Australia, though the nature and form of that involvement does vary in these different jurisdictions. The UK scheme shies away from the impact model of the United States, however, favouring a version of victim involvement that is not intended to encroach upon sentencing. With this concern in mind pilot victim impact statement schemes were established in three police force areas in the U.K. in 1997 to encourage victims of all kinds of crimes to describe how the crime had affected them. As the then Home Secretary Jack Straw is reported as saying, these schemes would:
give victims a voice in a way that they have not had before. It will be a real opportunity to make their views known more formally to the police, crown prosecution service and the courts and to know they will be taken into account in the case. I want victims to feel they are at the heart of the criminal justice system (The Guardian, May 27th, p. 6).
In some respects statements like these raise the spectre of victim-led justice Saudi-Arabian style which does not quite gel with traditional conceptions of justice associated with the
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have an effect on sentencing it is likely that three issues will remain unresolved. These are, first, the question of justice: how do you balance the interests of the offender with the interests of the victim? The second is the question of implementation: how do you guarantee that all victims are asked if they want to make a statement not just those deemed 'deserving'? The third is the question of participation: how do you ensure that victims who want to participate do so without there necessarily being any agreeable outcome for them? It would seem we have another policy encouraging good practice with only sound bite politics to enforce it.
Restorative justice It is now over twenty years since the first appearance of the essay by Christie in The British Journal of Criminology entitled "Conflicts as Property" (Christie, 1977). In that essay Christie was keen to make the case that the law, and the emergence of the professions associated with the practice of law, in taking disputes out of people's own hands, had not only denied them the right to manage their own disputes but had also, as a consequence, denied the development of more constructive and imaginative responses to such disputes. Whilst arguably this was primarily a polemical essay, its influence has nevertheless been significant in lending weight to what Pepinksy and Quinney (1991) entitled 'Criminology as Peacemaking'. This version of criminology is concerned to look for ways in which it might be possible to marry knowledge about crime and offending with a more constructive approach to the use of penalties for such behaviour. One of the themes in this work places emphasis on 'reintegration'; of finding ways in which the offender is made aware of the consequences and impact of their offending behaviour yet simultaneously is reintegrated into (rather than ostracised from) the community.
More recently Braithwaite (1989) has been influential in promulgating these ideas. His hypothesis is that in societies where there is a strong commitment to place collective interests over individual interests there are stronger incentives for people to conform and lower crime rates. His prime example of such a society is Japan. The practical implication of Braithwaite's hypothesis is concerned to establish mechanisms whereby offenders could be subjected to such collective processes, shamed by them, and subsequently re-integrated into the community with a stronger commitment to those community norms and values (that is, unlikely to re-offend).
To date many examples of such practices have emanated from Australia and New Zealand in the form of 'community conferences' or 'family conferences'. The relative success or failure of such practices is difficult to determine. What is less difficult to discern is the impact that such ideas have had on contemporary criminal justice policy thinking. In the U.K. faced by such criticism as the following:
The current system for dealing with youth crime is inefficient and expensive, while little is done to deal effectively with juvenile nuisance. The present arrangements are failing young people - who are not being
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guided away from offending to constructive activities. They are also failing victims..... (Audit Commission, 1996:96).
It is little wonder that much has been made of the reparation scheme being run by the Thames Valley Police, following the Australian and New Zealand model. Chief Superintendent Perry is quoted as saying about the scheme: 'While young offenders feel ashamed of what they have done, this allows them to make good and to go back into their community' (Crime Prevention News, 1998:12).
This theme of making good has been incorporated into the Crime and Disorder Act (1998). Such an emphasis rests on the hope that young people especially can be educated through the process of reparation on both the nature and the impact of their offending behaviour. It is hoped that as a consequence this will prevent re-offending and simultaneously repair some of the damage done to the victim of crime. In this way it is believed that both the victim and the offender can be re-integrated into the community; their conflict of interest resolved. How does this concern manifest itself in contemporary policy?
Miers et.al. (2001: 8) define restorative justice in the following way:
In broad and simple terms, 'restorative justice' signifies those measures that are designed to give victims of crime a opportunity to tell the offender about the impact of the offending on them and their families, and to encourage offenders to accept responsibility for, and to repair the harm they caused. Its general aims are to reduce re-offending to restore the relationship between the victim and the offender that was disturbed by the offence, and to improve victims' experiences with the criminal justice system.
The 1998 Crime and Disorder Act makes possible at a number of different junctures the introduction of restorative justice. For example, young offenders who receive warnings are referred to a Youth Offending Team, who may as a part of monitoring that offender require some sessions on victim awareness. Furthermore those who come before the court may find themselves in receipt of a referral order which may again include the prevention of re-offending through a youth offender contract. This may include direct and/or indirect reparation to the victim and/or the wider community. If a young offender is convicted of an offence they may find themselves in receipt of a 'community order'. Under the action plan which flows from this order the offender may be required to make reparation to the wider community or to the victim of the offence or anyone else affected by it should they so wish it.
Reaction to the introduction of these options within the criminal justice process have been somewhat mixed and many evaluations of such schemes have either little data to work with to date or have yet to report. The report by Miers et.al. (2001) is clearly indicative of the problems facing researchers in trying to evaluate the effectiveness of
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encouraging greater awareness of the impact of crime and discouraging further offending behaviour, we must ask whose vision of community justice is this most likely to work for and under what circumstances? Is it likely to work in communities in which intimidation and the fear of being labelled a 'grass' is the norm or is it more likely to work in communities not so structured with alternative forms of social control? Is it likely to work in communities striven with ethnic, religious or racial divides? If so, what would meaningful victim involvement look like and what resources would be needed to put such involvement in place? If we do want open and tolerant communities as the quote from Crawford above implies, then we need to address the reality of crime and criminal victimisation in communities as people actually live and experience those communities, not the way we wish they were.
Acknowledgements I am grateful to the editors for comments on an earlier version of this paper. The faults that remain are my own.
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So Who Are the Victims Now?
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